Skip to main content

4 Common but Incorrect Assumptions about Legal Custody in Massachusetts: What Does Legal Custody Really Mean?

Guest Post Series: Attorney Nicole K. Levy of Stevenson, Lynch & Owens Explores Massachusetts Law in Search of a Clear Definition for "legal custody" in Massachusetts.

There are few family law issues in Massachusetts that inspire more head-scratching confusion and incorrect assumptions than "legal custody". Unlike physical custody, legal custody is an abstract idea that purports to embody a parent’s right to participate in a child's major life decisions. In this blog series we examine four common assumptions about legal custody in Massachusetts and attempt to answer the question: what has a parent who has been awarded legal custody really received?

See how we addressed each Assumption:

Assumption 1 – Access to School & Medical Records

Assumption 2 – Consent to Medical Treatment

Assumption 3 – The Shared Custody “Veto Power”

Assumption 4 – Presumption of Shared Legal Custody

What do Massachusetts Appellate Court Decisions Really say about Legal Custody? 

The purpose of this blog series was to explore the definition of legal custody under Massachusetts law, which is virtually non-existent. Massachusetts appellate courts have addressed legal custody in a related but different context, however. There have been numerous appellate decisions in Massachusetts detailing when parents should not have shared legal custody. See Smith v. McDonald, 458 Mass. 540, 554 (2012) (shared legal custody appropriate “only if the parties demonstrate an ability and desire to cooperate amicably”); Carr v. Carr, 44 Mass. App. Ct. 924 (1998), (shared legal custody inappropriate where parents’ relationship was “dysfunctional, virtually nonexistent, and one of continuous conflict”); Rolde v. Rolde, 12 Mass. App. Ct. 398, 404 (1981) (“in order for joint custody or shared custody to work, both parents must be able mutually ‘to agree on the basic issues in child rearing and want to cooperate in making decisions for [their] children.’”).

Granted, these cases explain when parents should or should not share legal custody. If parents can communicate about their children, then legal custody is appropriate. If parents cannot effectively communicate, then one parent (often, but not always the custodial parent) should have sole legal custody. What these cases don't explain is what it means for a parent to have legal custody or not have legal custody.

What specific rights does a parent with legal custody really have? What specific limitations does a parent without legal custody really face? What does “participation” in major decisions really entail? What constitutes a “major decision” at all?

What Does Legal Custody Really Mean?

Clearly, the answer to the question above is anything but clear. We can say a few things with confidence, however. Parents who share legal custody have a vague duty to consult with one another regarding very important issues affecting their children. At a minimum, parents with shared legal custody appear to have a duty to notify the other parents of major issues involving a child’s academic, medical or religious life. Arguably, a parent with shared legal custody has a duty to at least consider the opinions of the other parent when making major decisions, although it is nearly impossible to measure a parent’s sincerity in this regard.

There is no question that the primary factor that courts and judges focus on when determining legal custody is communication. Courts look into the parents’ ability (or inability) to communicate to determine whether parties should have shared legal custody. And once shared legal custody is awarded, a judge could theoretically review a party's conduct to determine whether he or she failed to communicate, provide notice, and/or seek input from the other parent when making a major life decision on behalf of a child.

On a personal note, as recently as last year, I had a judge tell me that litigating legal custody was itself a sign that the parties lacked the ability communicate with each other about major decisions. Clearly, if one joint custodian undertakes a campaign to exclude the other from making major decisions in a child's life, a contempt judgment may conceivably be warranted. The problem is that such a contempt judgment has never been reviewed by a Massachusetts appellate court that could define the rights - and limitations - embodied by legal custody.

Examining the law of legal custody as a whole, one gets the impression that legal custody is less a “right” than a badge the courts give and take away from parents for demonstrating good co-parenting skills. Parents who demonstrate the ability to communicate with each other about their children receive the “gold star” of shared legal custody that signifies the parent’s willingness to meet the minimum requirements for co-parenting in Massachusetts. Parents who lack the ability to communicate with another parent about the children are deprived of the badge. In short, legal custody may be best understood as a tool that judges use to reward or punish parents for their co-parenting behavior that does not require the judge to change the one order that really matters: parenting time.

About the Author: Nicole K. Levy is a Massachusetts divorce lawyer and family law attorney for Stevenson, Lynch & Owens, located in Hingham, Massachusetts.


Comments

Popular posts from this blog

What is the purpose of the Divorce Nisi waiting period?

In Massachusetts the statutory waiting period after a Judgment of Divorce and before the divorce becomes final (or absolute) is called the Nisi period. After a divorce case settles or goes to trial, a Judgment of Divorce Nisi will issue and it will become Absolute after a further ninety (90) days. This waiting period serves the purpose of allowing parties to change their mind before the divorce becomes final. If the Judgment of Divorce Nisi has issued but not become final yet, and you and your spouse decide you don't want to get divorced, then you can file a Motion to Dismiss and the Judgment will be undone. Although many of my clients who are getting divorced think the idea of getting back together with their ex sounds crazy, I have had cases where this happened. In addition to offering a grace period to change your mind, the Nisi period has three other legal effects: 1. The most obvious effect of the waiting period is that you cannot remarry during the Nisi period, be

New Massachusetts Child Support Guidelines (2021): Big Changes, Little Changes, Typos & some Unexpected Results

UPDATE: The court has released a web calculating version of the 2021 MA Child Support Guidelines Worksheet .  It resolves some of the typos referred to below, but the unexpected calculations still apply. Every four years, per federal mandate, the Massachusetts Probate & Family Court revisits the Child Support Guidelines through the work of a Task Force appointed by the Chief Justice.  The 2021 Massachusetts Child Support Guidelines were recently posted.  They take effect on October 4, 2021.    If you are interested in a training on all of these changes to the new Child Support Guidelines: DMTA Presents the 2021 MA Child Support Guidelines Update  – Attend this event to learn the key updates you need to know for your mediation clients. Presented by Justin Kelsey of  Divorce Mediation Training Associates  and  Skylark Law & Mediation, PC . For a full comparison of all the  tracked changes between the 2018 and 2021 Massachusetts Child Support Guidelines you can download a pdf sho

Online Tool for Creating Parenting Plans

It is our hope that all families find a way to resolve conflict peacefully.  This is especially true when children are involved.  Divorced or separated parenting has many complications and the first is just deciding how to share time with a child from two separate households.  Developing a schedule can result in a lot of tension, especially if parents have trouble picturing how this new schedule will interact with their work schedules and the schedules of their children. To help make this easier, we've created an online tool for creating parenting plans that is simple and easy to use: We encourage parents, regardless of the process they are using to divorce, to use this form to assist in evaluating and settling custody disputes. The form allows you to choose between the Model Parenting Plan proposals or customize your parenting plan over a four week period by clicking directly on the form.  When you click on a section of the calendar it switches between Mom and Dad, an